Lawsuit against Fox News for its COVID-19 coverage dismissed by Washington state judge

A judge in Washington State on Wednesday dismissed a lawsuit against Fox News that attempted to quash the First Amendment to the Constitution and get the court to enforce prior oversight and restraint on the channel's future reporting.  The suit was filed in the Superior Court of Washington on April 2 in response to some of Fox News hosts' commentary on COVID-19 in early March.

first reported on this case in an article at American Thinker on April 15.  The plaintiff is a previously obscure 501(c)(3) public interest watchdog group called WASHLITE (Washington League for Increased Transparency and Ethics), whose acronym usually is spelled in all caps.

WASHLITE's lawsuit called for the state court to issue an injunction that would keep Fox News from "publishing [alleged] further and false and deceptive content" about the coronavirus pandemic.  In particular, WASHLITE objected to comments that it said were broadcast on March 9 by Fox News prime-time host Sean Hannity and Fox Business Network host Trish Regan, who has since left the channel.  A peculiar and dangerous argument by WASHLITE was that cable news broadcasters do not enjoy the right of free speech guaranteed by the First Amendment.

In his eight-page order yesterday to grant Fox News's motion to dismiss the case, King County Superior Court judge Brian McDonald wrote:

This Court concludes that WASHLITE's [Consumer Protection Act] claim against Fox is barred under the First Amendment. Fox's motion to dismiss is GRANTED.

In response, Fox News, whose lawyers in recent weeks had submitted dozens of pages of legal documents in the case, issued a statement that was provided to this writer by email:

Using a false portrayal of FOX News Channel's commentary, WASHLITE attempted to silence a national news organization to settle a partisan grievance. This was not only wrong, but contemptuous of the foundation of free speech and we are both pleased the court dismissed this frivolous case and grateful to the First Amendment community that rallied to our side.

The judge's ruling did appear to offer some lukewarm support for WASHLITE's objectives in filing its suit against Fox News:

WASHLITE's professed goal in this lawsuit — to ensure that the public receives accurate information about the coronavirus and COVID-19 — is laudable.


Washington Superior Court judge Brian McDonald presides over Zoom hearing on Fox News's motion to dismiss WASHLITE's lawsuit, May 21, 2020.  Still frame of YouTube video.

 

On May 19, in an indication of the gravity of the case, the Internet & Television Association (with support from its members that include Fox News competitors CNN, HLN, NBC News, MSNBC, CNBC, Telemundo, ABC News, CBS News, and BBC America) and the Reporters Committee for Freedom of the Press filed an amici curiae brief in support of FNC's position in the case.  On May 21, Judge McDonald presided over a live hearing with the principals from around the country participating via  Zoom video conferencing.  The hour-long hearing was also live-streamed on YouTube (the video is archived here).

In another salvo of support for Fox News, the Washington Post's acerbic media critic Erik Wemple weighed in.  Wemple is not a fan of Fox News — in a column on March 30, for example, he called for Fox News's most popular host Sean Hannity to be fired.  Nevertheless, Wemple wrote a lengthy opinion column of support for the channel, "Fox News has never been so right," published on May 23:

Here are just four facts about the case that merit consideration:

* Washlite has requested that the court issue an order "enjoining Fox to cease and desist televising any misinformation regarding COVID-19."

* Washlite has requested that the court direct Fox "to issue specific retractions of each and every false and/or misleading statement televised through its cable television stations relating to COVID-19."

* Washlite argues that cable programmers don't enjoy the level of First Amendment protections conferred upon newspapers.

* Washlite argues that statements on Fox News soft-pedaling coronavirus contradicted pronouncements by the U.S. government.

Wemple added:

So raw are these arguments that their stench carries from one Washington to the other Washington. The readership of the Erik Wemple Blog is sophisticated enough to spot the infirmities of any invitation to a court to serve as an editorial chaperone for a news network, or even a propaganda network. Do taxpayers in Washington state really want Judge McDonald to get into the intricacies of managing retractions?

Undeterred by Judge McDonald's motion to dismiss, WASHLITE board member and spokesman Arthur West, according to an article yesterday at TimesofSanDiego dot com, said his group plans to file a notice of appeal in a three-judge state appellate court to reinstate the suit against Fox News.

What is surprising, if not alarming, to this observer is that it took almost two months for this lawsuit to be thrown out of court — and not before Fox had to spend what one assumes is a lot of money on high-profile attorneys to defend its First Amendment claims.  Legal experts quoted by TimesofSanDiego dot com, which has reported on this case in detail since the beginning, commented that Judge McDonald's May 27 decision stood on sound legal and constitutional grounds.  However, one can never predict what an appellate court will do — especially one located on the left side of the people's republic of the state of Washington.  So it would not be surprising if we have not yet heard the last of this story.

Peter Barry Chowka is a veteran journalist who writes about politics, media, popular culture, and health care for American Thinker and other publications.  He also appears in the media, including recently as a guest analyst on BBC World News. Peter's website is http://peter.media.  For updates on his work, follow Peter on Twitter at @pchowka.